Lindsay-Poland v. DOJ, No. 22-07663, 2023 WL 8810796 (N.D. Cal. Dec. 19, 2023) (Chen, J.)

Lindsay-Poland v. DOJ, No. 22-07663, 2023 WL 8810796 (N.D. Cal. Dec. 19, 2023) (Chen, J.)

Re:  Request for certain firearms information from ATF’s Firearms Tracing System  

Disposition:  Granting in part and denying in part defendants’ motion for summary judgment; granting in part and denying in part plaintiff’s motion for summary judgment

• Exemption 3:  The court holds that “[a]t this juncture of the proceedings, the Court need not resolve the issue of whether Exemption (b)(3) applies because the bulk of the pending summary judgment motions can be resolved on other grounds.”  “Specifically, even if Defendants are correct that Exemption (b)(3) applies, that in and of itself does not bar disclosure because Exception (C) of the Tiahrt Rider[, the provision ATF relies on here,] provides an independent basis for disclosure, at least as to most of the information sought by Plaintiff.”  The court relates that Exception (C) of the Tiahrt Rider states that “‘[the Tiahrt Rider] shall not be construed to prevent . . . (C) the publication of annual statistical reports on products regulated by the Bureau of Alcohol, Tobacco, Firearms and Explosives, including production, importa[tion], and exportation by each licensed importer (as so defined) and licensed manufacturer (as so defined), or statistical aggregate data regarding firearms traffickers and trafficking channels, or firearms misuse, felons, and trafficking investigations . . . .’”  “Defendants argue that Exception (C) does not apply to the instant case for two reasons:  (1) Plaintiff is not a member of the news media and therefore disclosure of information to him will not lead to any ‘publication’; and (2) even if the ‘publication’ requirement is not at issue, at least some of the information sought by Plaintiff – specifically, the zip code information – does not constitute ‘aggregate’ data.”  The court first finds that “the Ninth Circuit defined ‘publication’ broadly:  any release of information to an entity or person that will result in the information becoming generally known to the public may satisfy the publication requirement under Exception C.”  “In his FOIA request, Plaintiff provided sufficient information to show that disclosure of the records requested would result in that information becoming generally known to the public.”  “Particularly in light of Plaintiff’s op-ed piece and his documentary film, Plaintiff is . . . at the very least the functional equivalent of a member of the news media for purposes of qualifying under Exception (C) of the Tiahrt Rider.”
  
  The court then relates that “Defendants acknowledge that, if the Court rules in Plaintiff’s favor on the publication requirement, then the majority of Plaintiff’s FOIA request is valid.”  “He seeks aggregate data.”  “Defendants contend, however, that one portion of the FOIA request is improper – specifically, to the extent Plaintiff requested the zip code of any [Federal Firearm Licensees (“FFL”)] where a traced firearm was purchased.”  “Exception (C) allows only for disclosure of ‘statistical aggregate data,’ but Defendants maintain that, in at least some instances, revealing a ‘FFL’s zip code would reveal the identities of individual FFLs’ and therefore would not be aggregate in nature.”  The court finds that, “[a]lthough Defendants’ position here is not without any merit, there are several problems with [defendant’s] declaration and the government’s argument.”  “First, [defendant’s] declaration proceeds on the assumption that ‘aggregate’ data means anonymized data.”  “While this is not an unreasonable interpretation of the Tiahrt Rider, Defendants do not cite any authority in support for this interpretation of the Tia[hr]t Rider.”  “Second, [defendant’s] numbers analysis is predicated on only three license types being considered . . . .”  “[Defendant] asserts that ‘the holders of . . . these three license types are authorized to conduct retail firearm sales and are thus most likely to be involved in a traced crime gun,’ . . . but this is a relatively barebones explanation of why other license types should not be taken into account and how, if they are taken into account, this would change the statistics [defendant] cites.”  “Finally, and most importantly, [defendant’s] declaration reflects that ATF has not actually run Plaintiff’s FOIA request; rather, the agency has simply made an assessment that there is a ‘statistically significant chance’ that individual FFLs would be revealed.”  “But it is entirely possible that, if the agency were to actually act on Plaintiff’s FOIA request, this problem may not be encountered at all, or only a few single-FFL zip codes would be implicated.”
  
  “Given the deficiencies identified above, the Court has the discretion to ask the government to supplement [defendant’s] declaration or remand for further proceedings to ATF.”  “To ensure that the agency will provide a sufficient explanation for the basis of its decision, the Court concludes that a remand would be more appropriate under the circumstances presented here.”